Safety and liberty: libertarians, the Bush administration, and the war on terror

Somewhat belatedly, I want to take note of an interesting, rather acerbic article by Matt Welch at Reason.com, “The Pro-war Libertarian Quiz: How far are you willing to go to win the War on Terror?” Matt asks pro-War on Terror libertarians and libertarian/conservatives who have defended controversial measures such as coercive interrogations, the use of Iraqi newspapers for U.S. propaganda, or extrajudicial surveillance of some Americans’ communications just what measures expanding state powers they would not support. Here is his checklist:

1) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails without obtaining judicial approval?

2) Should the government have the ability to hold an American citizen without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?

4) Are there American journalists who should be investigated for possible treason? Should Sedition laws be re-introduced?

5) Should the CIA be able to legally assassinate people in countries with which the U.S. is not at war?

6) Should anti-terrorism cops be given every single law-enforcement tool available in non-terrorist cases?

7) Should law enforcement be able to seize the property of a suspected (though not charged) American terrorist, and then sell it?

8) Should the U.S. military be tasked with enforcing domestic crime?

9) Should there be a national I.D. card, and should it be made available to law enforcement on demand?

10) Should a higher percentage of national security-related activities and documents be made classified, and kept from the eyes of the Congress, the courts, and the public?

Matt, who is definitely not a “more libertarian than thou” type, would answer no on all of the above. I’m wavering on (5) and (6). One (1), I have to confess that the idea of a computer program scanning emails in order to pick out certain suspect words (as long as those emails are not read by any individuals) does not particularly horrify me even if such scans do not require a warrant. I could be wrong, of course, but I just don’t see the massive threat to liberty here.

Agree or disagree on some of those specifics, I think Matt raises a very important issue. There are self-identified libertarians and small-government conservatives who have justified illiberal, unlibertarian, big-government measures on the grounds that “we’re at war.” The danger of these justifications is compounded by the fact that this war has no clear definition of victory, no specific goal, no geographic limitations — no discernible end. A war that could go on indefinitely and that can serve as a justification for curtailing civil liberties: a greater internal danger to freedom is hard to imagine.

On the other hand, for an example of how not to argue against the threat to freedom posed by the War on Terror, check out this op-ed by Silicone Valley entrepreneur T.J. Rodgers, blogged at Reason’s Hit & Run under the heading, “Rodgers Gets It Right.”

Rodgers correctly discusses the disturbing implications of some actions undertaken in the name of the War on Terror, including the recently revealed unauthorized NSA surveillance of U.S. citizens. (My own take on that, by the way, is closest to the one stated here by former New York Mayor Ed Koch.) But then he gets to his conclusion:

What’s the worst thing that Al-Qaida can do to America? We have probably already seen it. Of course, the government can talk about bigger things, like the use of weapons of mass destruction, to justify its use of totalitarian tactics.

I would much rather live as a free man under the highly improbable threat of another significant Al-Qaida attack than I would as a serf, spied on by an oppressive government that can jail me secretly, without charges. If the Patriot Act defines the term “patriot,” then I am certainly not one.

By far, our own government is a bigger threat to our freedom than any possible menace posed by Al-Qaida.

Rodgers cites no evidence that another significant Al-Qaeda attack (including one using biological weapons) is “highly improbable.” I don’t think that either his optimistic estimate of such a probability or his rather cavalier dismissal of it is likely to impress a lot of Americans who are not hardcore libertarians. I don’t think we need to sacrifice civil liberties or the Constitution to avoid another 9/11 or an even greater calamity; but “better a major terror strike in America than warrantless wiretapping of suspected terrorists” is not an argument that will carry the day.

About these ads

48 Comments

Filed under Uncategorized

48 responses to “Safety and liberty: libertarians, the Bush administration, and the war on terror

  1. Rick

    is it just me, or do national ID cards scare anybody else more than anything?

  2. Anonymous

    Well, Cathy, count me as one who thinks Rogers is correct. Prior to 9-11, it had been eight years since the last significant Islamic terrorist attack on US soil (that being the first bombing at the WTC, which killed about a dozen people). The fact is, 9-11 was a massive fluke, a statistical outlier, a lucky (from their perspective) break that caused far more damage than anyone could have expected.

    I don’t lie awake at night worrying about more terrorist attacks. Bio-weapons are overrated. How many people have actually died from anthrax? Fewer than have died from lightning.

    Chemical weapons are also overrated. Remember that sarin gas in the Tokyo subway? It killed a few dozen people, not thousands, and it was that effective only because it was used in a highly crowded and poorly ventilated space: a subway tunnel at rush hour.

    The only significant threat that I see here is nukes – but given the track record of the last four years, we would have to acknowledge that London, Paris, Madrid, and Bali are at least as high on the terrorists’ target list as any US city.

    Tell me again why we should trade *any* freedom in exchange for security?

    Joel

  3. Anonymous

    Cathy,

    We had a lengthy Matt’s column last week. It got sidetracked by a quarrel about the left-alleged illegality of the war, but there are some good points in there, including some comments about the “loaded” nature of how some of Matt’s questions are worded.

    –bk

  4. Y

    1) We are not at “war”. There has been no declaration of war passed by Congress. It is time we called a legal fiction what it is – a cowardly way to escape responsibility by a Congress more worried about public opinion polls than leadership, and a not-so-subtle grab for power by a group who is rather ruthless in its use of that power. Whether or not you hate Harry, look up the hearings of the Truman Commission during World War II; try to find a comparable attempt at investigation and accountability during the past five years.

    2) President Bush has stated “All governments that support terror are complicit in a war against civilization.” If civilization is indeed at stake, shouldn’t we fight as if civilization is indeed at stake? Can a believable case be made that this is the actual stakes? If this “war” is only with the three to five thousand people who make Al-Qaeda, then is our verbal response as well as our political/economic/military response in proportion to the real threat?

    3) The majority of the measures taken since 9/11 have focused on domestic spying and control. How does this protect us from an external enemy? If we were to go by where the point of main effort is, then we must be engaged in a Civil War.

    4) Based on what I have read in the 9/11 commissions report, the success of that terrorist cell had more to do with a lack of imagination and bureaucratic bungling than any thing else. Those in power did not take the threat seriously, and did not put the resources and coordination in place to deal with it. I disagree it was a statistical anomaly, it was recurring human error.

    5) The Bush administration states the current ‘threat level’ is ‘Elevated’, and has repeatedly indicated another terrorist attack will occur, despite their efforts. If the concern really is of a terrorist cell using a biological, nuclear, or chemical device, then very fundamental logic requires that focus be on preventing and dealing with the results of such an attack. Have the first responders and local hospitals the information, training, and equipment they need to recognize and deal with such an attack? Go to your local police station, explain to the Chief of Police and hospital, speak with the Chief and the hospital director, inform them you asking because you want to understand what has been done at a local level, and see if you are happy with the answer. Do the local police have training on recognizing pre-cursor chemicals? What CBR gear do they have? Have the doctors and nurses at the ER received classes on recognizing the signs of the use of nerve agent so they know not to touch the patient or his clothes until it is decontaminated? Do they have a designated isolation ward? Accept in doing so that your name will be sent to the FBI and Homeland Security as an incident report. Do not question the billions of dollars spent and the civil liberties trampled after you have this information.

  5. Rainsborough

    Koch is too kind to the president. That the president has been advised by lawyers to defy the law means nothing. The lawyer he’s relied on, John Yoo, was derelict in his duty to inform his superiors where the bounds of law lie. Instead, he constructed fantastical and extremely tendentious theories of presidential power that amount to a flattening of all legal restraints on presidential conduct. His is entirely a “trust-me” version of presidential power.
    Secondly, this president and his vice-president have from the outset sought to free executive powers from all judicial and legislative curbs. The extremity of their views is shown by the president’s declaration when he signed the McCain torture bill into law that he does not regard it as restraining him from doing whatever he decides appropriate and necessary to do.
    Some libertarians hold the view, one might say, that McCulloch v. Maryland was wrongly decided. That is, they believe the powers of the Congress are strictly delimited by the seventeen enumerated powers. Hence courts should freely strike down any legislation that exceeds these bounds.
    These limits on governmental power disappear unless one also holds that the executive is empowered to do only it’s authorized to do by law, by the Congress. It’s strange to me that so many libertarians are so untroubled by a president who has declared himself unbound by law and who takes his role as Commander-in-Chief to empower him to treat every citizen like a private in ranks. (But of course we can trust him only to go after guys we too think are bad.)

    Also, Rick–
    Being obliged to obtain and carry an ID card doesn’t particularly scare me at all. I had to get and carry a Selective Service card. That was scary–but if a draft is permissible, as I believe it may be, my being compelled to get that card was consistent with the requirements of civil liberty. If that card, why not the more innocuous identity card?

    Also–those who want to join the anonymous/Rogers camp will find much to support their conclusions in the work of John Mueller (Ohio State), easily googled.

  6. Revenant

    We are not at “war”. There has been no declaration of war passed by Congress

    The authoritzation of force passed after 9/11 was a declaration of war under accepted legal standards, as was the authorization for use of force against Iraq. So yes, we’re at war, legally as well as literally. There is no legal or Constitutional requirement for Congress to put the exact words “Declaration of War” on a bill.

    I would say “no” for 2, 7, 8, and 10 and “yes” for 3, 5, 6.

    For 1, the NSA and CIA should be allowed to monitor domestic phone calls involving noncitizens, plus of course calls made to overseas, while the country is in a state of war (i.e., until the authorization of force is repealed).

    For 9, Yes there should be a national ID card (it would be a huge convenience at no net loss of privacy — the information industry already has us by the short hairs), but no it should not be available to law enforcement on demand.

    As for whether reporters should be investigated for treason — if there is reason to believe that they are guilty of it, then certainly. Writing for a newspaper doesn’t put a person above the law. But no, the Sedition acts should not be reinstated.

    And I agree that Matt’s questions were loaded. Particularly #4 and #9, which pull the old rhetorical trick of pairing a tough question with an easy one and pretending they’re the same thing. He also asked the questions of people whose answers he already knew (for example, Instapundit is against jailing US citizens without trial and against national ID cards). Overall it gives the impression that Matt was more interested in scoring rhetorical points than he was in having an honest discussion.

  7. Revenant

    The danger of these justifications is compounded by the fact that this war has no clear definition of victory, no specific goal, no geographic limitations — no discernible end

    That argument has always struck me as disingenuous. Obviously there are clear definitions of victory — for example, Islamic terrorists and their sponsors could all be killed, surrender and be imprisoned, or abandon violence and reach a peaceful settlement with us. No, there isn’t a law passed by Congress saying “the war with automatically end when conditions X, Y, and Z are met”, but to the best of my knowledge we’ve never had such a document.

    Equally obviously there is a specific goal, which is the defeat of Islamic terrorism.

    As for there being “no discernable end”, there has never been a discernable end to any war we’ve fought until shortly before it ended. It isn’t like civil war generals in 1962 sat around saying “we better hurry up with the fighting, we’ve only got three years to go.”

    Finally, the idea that there are no geographical limitations is also disingenuous. The geographical limitations are as they have always been — we fight where the enemy resides, in the manner appropriate for the area. It wasn’t pre-decided that there would be no fighting in Spain during WW2, for example — it is just that the Axis never invaded it, ergo the Allies never had to fight there. The geographical limitations of the war on terrorism are that we fight where terrorists and their allies are located — i.e., primarily in the Middle East, with law enforcement and espionage work in much of the rest of the world.

  8. William R. Barker

    Allow me to give my short – VERY short – responses. If this thread takes off and anyone is interested in in-depth discussion I’ll certainly take part.

    1) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails without obtaining judicial approval?

    *** As in in broad based program like “carnivore?” Yes. The government isn’t really “targeting” individuals as individuals. As in monitoring specific individuals… no. Basically, though, since everyone seems focused on the 4th Amendment, let’s note that the constitutional prohibition is against UNREASONABLE searches and seizures. I tend to think the 72-hour retroactive provision takes account of this and seems a reasonable compromise.

    2) Should the government have the ability to hold an American citizen without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

    *** No. Period.

    3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?

    *** Sure. Many. It would of course wreak any strictly LEGAL case against the citizen, but I could see doing it if there’s reasonable reason to think doing so would avert a national calamity.

    4) Are there American journalists who should be investigated for possible treason? Should Sedition laws be re-introduced?

    *** There probably are… but I’d have to see cause. Re: Sedition Laws… no… I think the Constitution is pretty clear with regard to treason.

    5) Should the CIA be able to legally assassinate people in countries with which the U.S. is not at war?

    *** Hmm… I tend to think not. Let the President use his constitutional power to pardon on a case by case basis.

    6) Should anti-terrorism cops be given every single law-enforcement tool available in non-terrorist cases?

    *** Huh??? I’m not really following the question. I abstain! (*GRIN*)

    7) Should law enforcement be able to seize the property of a suspected (though not charged) American terrorist, and then sell it?

    *** No. (Unfortunately… the courts seem to see things differently.)

    8) Should the U.S. military be tasked with enforcing domestic crime?

    *** They should be used as necessary. Without specific examples of what the author refers to it’s hard to give a blanket answer. I’d say… definitely… maybe. (*SMIRK*) Otherwise known as “sometimes.” (*SMILE*)

    9) Should there be a national I.D. card, and should it be made available to law enforcement on demand?

    *** Yes! Definitely! Frankly I can’t think of one single reasonable objection.

    10) Should a higher percentage of national security-related activities and documents be made classified, and kept from the eyes of the Congress, the courts, and the public?

    *** No. But national security should be taken seriously and true violations of national security should be dealt with harshly.

  9. William R. Barker

    I agree with Y when he writes, “We are not at “war”. There has been no declaration of war passed by Congress. It is time we called a legal fiction what it is – a cowardly way to escape responsibility…”

    Yep. Congress sucks!!! Congress – whether controlled by Democrats or Republicans and whether serving in tandem with Republican presidents or Democratic presidents has been deliberately ducking their constitutional responsibilities since the time of Teddy Roosevelt.

    And no… to reiterate and clarify for those who focus on the initial three words “Yep, Congress Sucks,” I blame various presidents of both parties as well as Congress. In fact, in many ways I blame presidents more since they are individuals and Congress is a body.

    Oh… and not to leave any branch out… (*SMIRK*)… the federal courts and USSC haven’t exactly been pillars of constitutional rectitude (or even simple reading comprehension!) when it comes to dealing with the other two branches’ deliberate side-stepping of clear constitutional wording and intent year after year, decade after decade.

    Revenant is… confused. (*SMILE*) Perhaps Jesus will come back to earth, raise the Founding Fathers from their graves, and they could explain the difference between clear intent and wording and “generally accepted legal standards.” (*GRIN*) You see, Rev, this is why “precedent” is a two-edged sword. If the branches of government are allowed to circumvent constitutional provisions and plan common sense interpretation of plan language year after year, decade after decade, people like you think “precedent” justifies continuing a flawed “tradition.”

    As for the rest of your post, Rev, glad to hear we’re not totally at odd! (*SMILE*)

  10. Rainsborough

    Here’s how Cass Sunstein sums up Bush’s conception of presidential power: “A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.”
    Regardless of how you answer Matt’s ten questions, underlying them all is the question WHO should decide what the answer is to be. In every instance (except maybe reintroducing the sedition LAWS and national ID cards–where the obstacles are practical) Bush’s Yooian answer is plainly “I or my designees decide, as we judge best.” Why do conservatives trust any person with unlimited power? Yes, Bush does face actual limits. But he asserts they aren’t legitimate. Is it essential to the conservative worldview to agree with the incumbent president that there are no legitimate limits on his power (except that he depart the White House January 20, 2009)?

  11. Revenant

    Revenant is… confused. (*SMILE*) Perhaps Jesus will come back to earth, raise the Founding Fathers from their graves, and they could explain the difference between clear intent and wording and “generally accepted legal standards.” (*GRIN*)

    The clear intent was that Congress should decide when the USA goes to war. Congress did decide when we went to war — that was the authorization of force.

    The clear wording is “Congress shall have the power to declare war”. There’s no textual requirement for the form the declaration has to take or the wording it has to use. Congress declared war when they authorized the President to attack another nation. The belief that it doesn’t count as a declaration because Congress didn’t say “Simon says” is silly and without legal or Constitutional basis.

    So, no, there’s nothing contrary to either the spirit or the letter of the Constitution in the way Congress declares war these days. The important thing was, and is, preventing the President from using the military as a private army free from Congressional control.

  12. Revenant

    Why do conservatives trust any person with unlimited power? Yes, Bush does face actual limits.

    Doesn’t that make your question a non sequiteur? A person could quite reasonably believe that no person can be trusted with unlimited power without having any problem with the NON-unlimited power that Bush has.

    Indeed, even if Bush had all the power he thinks he is legitimately entitled to his power would still be limited. Congress, for example, controls his budget.

  13. Lori Heine

    The only one of those questions I would say “yes” to would be #10.

    The separation of powers thing is especially important to me. A President answerable to no governmental check or balance is a king.

    If we can’t trust a judge to issue a warrant when one is really necessary for the sake of national security, then how can we retain such burning faith in human nature that we wouldn’t mind the President spying without a warrant?

    If we’re all that mad, in this country, for a king, I’m sure that Charles and Camilla wouldn’t mind crossing the pond and picking up where King George left off in the 1700′s.

  14. Lori Heine

    Let me P.S. that. I realize that the National Security Agency and the CIA are not the President, but they are still U.S. governmental officials, therefore they are not above the law.

    And if soldiers are keeping the peace domestically, that means we are under martial law.

    I wish some of these hotshots in Washington would familiarize themselves with the Federalist Papers, our Constitution and some really good books on the American Revolution — preferrably written by people who actually lived through it.

  15. Rainsborough

    Just how far has Bush gone? What limits has he observed? How can we or Congress or the courts know?
    Bush says in effect that he’s unconstrained by law. Is it a tenet of conservatism that executive officials are free to do as they wish and to tell us or Congress or even the Courts what they choose to tell? If the executive in effect declares itself unbound by the rule of law (free to make of the law whatever it determines is best), aren’t we indeed in the place Bolt describes in a Man for All Seasons, where the laws being all flat? Who can stand and who can’t where we are now? How can we know, ruled by a chief executive who presumes to fashion the law however he wills?
    The Republican Congress is led by men who approve even the president’s assertion that he’s free to torture as he deems necessary, or his open defiance of USC Title 50, Chapter 36, Section 1857. Should we expect them to take any measures that might embarrass the party and reduce its majorities?

  16. Pooh

    I’ll give my brief answers (even though I am lib/left rather than lib/con). Since I’m working on my own post on this, don’t want to scoop myself, now do I ;)

    1) Tend strongly towards no, but the question is too broad to give an absolute answer.

    2) Absolute, unqualified no.

    3) Yes. I watch 24 too.

    4) Categorical no.

    5) Depends on what ‘legally’ means, but tend towards yes.

    6) I don’t understand the question. They should have normal law enforcement powers – I’m skeptical about enhancing that power further, (though ‘terrorist warrants’ might be appropriate. Still judicial oversight, etc…)

    7) Emphatic no.

    8) Absent legitimate martial law scenarios, no.

    9) No to the on demand. Nat’l ID card is a sticky wicket – there has been a lot said about the ‘false sense of security’ effect of such ‘official’ documents. Much like the race between bigger bombs and better armor is always won by the bombs, so too the contest between conterfeiting and counterfeit prevention.

    10) The public, sure, maybe, I don’t know. Congress, no, judiciary no.

    Revenant, how is the power limited by the purse strings if he can just take it because he needs it? If intelligence is critical to warmaking so a fortiori is funding. If he doesn’t have to abide by the McCain ammendment rulemaking re: army, then why does he have to abide spending decisions? To extend the argument slightly to the absurd, what if GWB is convinced that Hilary assuming office would be disastrous for national secutiry, therefore he needs to stay on and direct the war effort. (I’m kidding on the last one. Mostly.)

  17. Darleen

    Does Rogers have credit cards? Does he have any store “preferred customer” cards? ATM cards? A driver’s license?

    What is the paranoia that somehow the government, and only the government, is interested in the rather boring, mundane minutia of Rogers life? Own property? Hold a professional license? Own a business?

    Nice that he believes it is ok to risk his neighbors’ life to a new wrinkle on war, but doesn’t seemed bothered that he has willingly given up his privacy in all manner of ways in how he chooses to live.

  18. Revenant

    The Republican Congress is led by men who approve even the president’s assertion that he’s free to torture as he deems necessary

    McCain’s torture ban has the support of a majority of Congressional Republicans, plus Bush himself.

    Reading your post (and others in this thread) I kind of get the feeling that, in many people’s view, Congress is always right in power disputes with the Executive, and the courts are always right in power disputes with the Executive branch or Congress. Our system is one of checks and balances, not “court > congress > President”. There are many scenarios in which, when the Executive says one thing and the courts say another, the *courts* are wrong. Ditto for conflicts between the executive branch and Congress, or between Congress and the courts.

    For example, the Judicial branch isn’t granted authority over enemy combatants captured in wartime. If the US military catches an enemy combatant in Afghanistan and throws them in a cell, and the court says “we get a say in that” and the President says “no you don’t”, from a Constitutional point of view it is probably the COURT that is abusing its authority, not the President.

    Similarly, it is questionable whether Congress has authority to tell the President *how* to fight a war. It funds and raises the armed forces, and declares when and with whom wars may be fought, but the President is the commander in chief — not the House of Representatives or the Senate. So, again, a case can be made that Congress can say “attack Iraq”, but not “attack Iraq without using torture on people you capture”.

    A lot of the specifics of which branch gets to do what rely on tradition rather than on explicit instructions in the Constitution. The things Bush is doing aren’t unprecdented; both Lincoln and FDR employed far more draconian powers in a far broader manner, and somehow our republic survived. So long as we keep having elections, nobody’s power, however broad in wartime, is without limit.

  19. Anonymous

    Joel — the argument is that Al Qaeda, despite going 14-0 against some of the best counter-terrorism best (Turkey, Tunisia, Jordan, India, Spain, and Britain); and killing over 4,000 people in these attacks, EXCLUDING IRAQ, somehow is doomed to failure in the US due to …

    What exactly? Magic fairy dust?

    The reason the Ohio, Northern VA, LA, Lodi, Lackawanna, Padilla, and other Al Qaeda cells were stopped was not torture, unfettered secret police, or identity cards. But MASSIVE technology, the BEST problem solvers in the world, and unlimited money.

    The risk factor goes (best guess given Al Qaeda operations elsewhere) like this:

    1. Most likely, various suicide bombing attacks on the same day in malls, sports arenas, the like coinciding with mass murder at schools (particularly elementary schools, etc. that are Jewish) and government offices. Around 80% within two years without lots of technology and manpower applied to finding these guys. [Actual plans by the LA jihadis]

    Basically this possibility is the plot by the LA Jihadists, aimed at replicating Beslan (which also included blowing two airliners out of the Sky). You need a team of about 10-12 guys willing to die armed with AKs. Not a lot of outlay and impossible to stop once set into operation. Once you set up cells like this you can carry out these operations over and over again; London was hit TWICE. And yes Al Qaeda also learns from it’s failures to kill as many as planned. Unfortunately.

    2. Somewhat more likely; hijacking an air freight plane, or even better placing a crew inside (pilot and co-pilot) who are willing to crash it into some massive sporting event. College football stadiums in the South and Midwest routinely get around 100K people, so that’s a lot of victims. Takes more prep time and planning so likelihood about 50% within two years without tech measures applied. Doubtless this has been wargamed but the sheer volume of air freight means you can’t watch EVERYONE and EVERY PLACE.

    3. Less likely but more scary, nuclear attacks with Iranian or Pakistani nukes. Smuggled in however. Planners in NYC estimate 1.6 million dead for a mid-town Manhattan bomb of Hiroshima size (rather small). Likelihood? Who knows? Maybe 30-40% within two years? Less maybe?

    The danger is that if you have that event, even if it’s unlikely (like say, a Hurricane hitting New Orleans) one year, cumulatively it is dead certain. And will kill a LOT more than Katrina did. Total dead from Katrina in MS and LA were 1,000 or so. Versus 1.6 million.

    So what you’re arguing is that we should beat up Bush for not preparing for an event that each year was unlikely, but certain eventually, that killed 1,000 people, but should merely shrug off 1.6 million dead that is also unlikely each year but certain eventually. Given that bin Laden got a public FATWA from a Saudi Imam justifying nuclear attacks on the US, this to me seems a denial of basic reality.

    That’s not logic merely Bush Derangement Syndrome.

    The real danger to civil liberties comes when government abandons it’s duty to it’s people. While stories out of New Orleans were untrue in some regard, yes women were sexually assaulted and some people were killed. Gangs did rule the streets. If we ARE hit with a nuclear weapon, it’s clear to me that people will conclude that government is incapable of protecting them due to PC and civil liberties concerns, and take vigilante action to make themselves safe. It is undeniably true that if there are no Muslims in the US there can be no Muslim-led terror attacks. We court the mob to the degree that we ignore the 9/11 Commission specific recs that include sharing info between NSA and the FBI, over-concern over civil liberties of suspected terrorists, and failure to put preventing mass casualty terror attacks over legalistic processes. Better to simply deport terror suspects here illegally than worry about the balance of civil liberties and legalism.

    Food for thought. Two of the 9/11 hijackers including leader Atta were stopped for speeding in Florida, at a time when their visas were expired. If they had been flagged (anathema to civil libertarians) as Visa violators and arrested and deported, the plot may well have been aborted.

  20. Brad

    The danger of these justifications is compounded by the fact that this war has no clear definition of victory, no specific goal, no geographic limitations — no discernible end

    That argument has always struck me as disingenuous.

    First, let me offer that when I make this argument, I do so sincerely. It’s not a cover for some other argument (such as “I just don’t like the guy in charge”). I would have misgivings regardless of who is assuming these wartime powers.

    Obviously there are clear definitions of victory — for example, Islamic terrorists and their sponsors could all be killed, surrender and be imprisoned, or abandon violence and reach a peaceful settlement with us.

    Equally obviously there is a specific goal, which is the defeat of Islamic terrorism.

    Let’s start with the first portion, that one path to victory would be to kill all “Islamic terrorists and their sponsors.” As a practical matter, I don’t believe we know who all terrorists are. We don’t have a checklist, exactly.

    And, even if we did, I doubt it would be made public to you and I, since that may very well hamper our ability to find them. This is what makes this sort of effort unique, and unnerving. I’ve always believed that power, once assumed, is rarely relinquished voluntarily (sort of like how it is much easier to create a tax, or an entitlement, than it is to remove it). In previous wars, the “end” would be very obvious to bystanders. A foreign power capitulates publicly, and there is a return to normalcy.

    In this case, there is no such event. Instead, we are at the mercy of the government to tell us that the threat has been removed (or, more accurately, reduced in an acceptable way). So, while FDR could not pretend that Hirohito had not surrendered, any sitting president can decide whether or not we have “won” the war on terror. In the case you present, “all terrorists and their sponsors” being nullified, it’s pretty easy to say that there is probably still one or a few people with malice in their heart… we just haven’t found them yet. (Let me add here that “sponsors” seems a particularly slippery term.)

    As for there being “no discernable end”, there has never been a discernable end to any war we’ve fought until shortly before it ended.

    You are begging the question here, by defining “discernable end” as an end date. You are right in that a war can last three days or three decades. But historically, there is a mechanism for ending war: the losing nation capitulates to the terms demanded by the victorious nation, whatever those may be. When this happens, their forces are deemed to have surrendered as well.

    When critics of the war on terror say there is no discernable end, they mean that there is no other mechanism for this war to end other than for us to declare that we have reached our goal. We aren’t fighting a nation, we are trying to defeat every last individual fighting against us. Practically, this is unknowable (if not impossible, since anyone may take up arms in the future), and it demands a particularly trusting philosophy towards the government.

  21. Rainsborough

    Torture is contrary to treaties that the US has signed, and under the Constitution, treaties are the law of the land. So the president isn’t free to torture, it’s against the law for him to do so. Yet the president, or his now-out-of-house intellectual, John Yoo, asserts that he may terminate treaties at will.

    The president asserts the power to take the country into war at his discretion. Despite the plain intent of the founders to empower the Congress alone to lead the country into war, this president believes that the president alone may at his discretion take the country into war. The topsiness-turviness of his conception of constitutionally prescribed powers may not be unique to him among presidents. But just as Rove is Bush’s brain in politics, Yoo is Bush’s brain in constitutional theorizing. His conception of his powers as president goes far beyond any a limit on how he conducts the war.
    Anyway, it’s by no means obvious that the theory of the constitution, where the power to make law and declare war lies with the legislature, doesn’t imply that through its appropriation power and through its power to declare war and to regulate the armed forces, the congress can’t, if it chooses, constrain the president to fight as it chooses.

  22. Anonymous

    Jeez Cathy, my ba, i mention out thread’s lengthy detour into the alleged illegality of the war, and in so doing give birth to the exact same detour in your thread.

    My bad, but you gotta admit it’s kind of funny.

    BK

  23. digamma

    I don’t think that either his optimistic estimate of such a probability or his rather cavalier dismissal of it is likely to impress a lot of Americans who are not hardcore libertarians.

    Did you read the Reason debate over corporate responsibility? I don’t think Rogers is trying to impress anyone else.

    You’re right that it’s not an argument likely to win many converts, but that doesn’t make it a wrong argument.

  24. Revenant

    As a practical matter, I don’t believe we know who all terrorists are. We don’t have a checklist, exactly.

    When have we ever fought a war by working our way down a checklist of everyone fighting on the other side? The first goal has to be the elimination of their support structure. Without a support network many, if not most, terrorists would give up the fight and it would be much harder for the remainder to find and train new recruits. *That’s* when we focus on rounding up the die-hards.

    FDR could not pretend that Hirohito had not surrendered

    Especially since FDR was dead at the time. :)

    any sitting president can decide whether or not we have “won” the war on terror.

    I don’t think that is any more true with the war on terrorism than it was with the Cold War. It isn’t as though the Communists of the world got together one day and said “we surrender — capitalism and democracy have won”. But by the early 90s it had ceased to be possible for any politician or pundit to credibly talk about the threat posed by international communism.

    Americans consented to the end of hostilities with Germany and Japan not because those countries said “we surrender!”, but because we believed they weren’t a threat anymore (and, as it turns out, we were right). Should we become similarly convinced that Islamic terrorism has been essentially eliminated as a problem we will require of our elected officials that they end the war on terrorism, too.

    You are begging the question here, by defining “discernable end” as an end date.

    Well, how did we know that our war with Japan was over? It certainly wasn’t because Hirohito pinky-swore that it was. We parked armies on top of the Japanese for years, and occupied them at gunpoint, specifically because we *weren’t* entirely convinced that the threat was gone. But at some point a consensus was reached that Japan no longer posed a threat, and we allowed them self-government again. In the interim — between 1941 and 1952 — we had to rely on our own judgement and what our leaders told us in order to decide whether a continued war was necessary.

  25. Pooh

    Revenant, this:

    McCain’s torture ban has the support of a majority of Congressional Republicans, plus Bush himself.

    is the single most ridiculous thing you’ve ever said here. You cannot be serious in suggesting that him signing it only because he doesn’t believe it applies to him is the same as the support of 90 senators and the majority of the American people. Your reading is tendentious to the point of purposeful mendacity. Stop it.

  26. Brad

    When have we ever fought a war by working our way down a checklist of everyone fighting on the other side?

    Never, which is exactly my point. If you say that the condition for victory is knowing that all enemy combatants are nullified (“Islamic terrorists and their sponsors could all be killed, surrender and be imprisoned, or abandon violence and reach a peaceful settlement with us”), you are creating a condition that is not analogous to any other war, and one nearly impossible to discern.

    Especially since FDR was dead at the time. :)

    I was hoping you’d let that slide. It was typing a little too fast there :-)

    I don’t think that is any more true with the war on terrorism than it was with the Cold War.

    True, but the “Cold War” did not confer war powers, which is our specific point of debate here (right?). The fact that we call the Cold War a “war” is a convention, not an act.

    Well, how did we know that our war with Japan was over? It certainly wasn’t because Hirohito pinky-swore that it was. We parked armies on top of the Japanese for years, and occupied them at gunpoint, specifically because we *weren’t* entirely convinced that the threat was gone.

    These are the terms of surrender that I regerred to. When a nation loses a war, some level of observable disarmament is part of the agreement.

    In this case, how is it possible to know that “all” terrorists and sponsored have been capitulated or been killed, as you suggest?

    and finally:

    Should we become similarly convinced that Islamic terrorism has been essentially eliminated as a problem we will require of our elected officials that they end the war on terrorism, too.

    This is pretty directly to my point: how on earth can we (the public) become convinced of this, independent of what the government tells us?

    The war on terror, by its nature, requires enough secrecy that even an informed public is unlikely to know when it is over. There are no public signals, and nothing that will motivate the political will in the way that a national surrender (and, yes, postwar occupation or disarmament) would.

    As you say with postwar Japan, we had to rely on our own judgement and what our leaders told us. The key difference here is that we have no way to form our own judgement. All that we have is what our leaders tell us, which is naturally uncomfortable.

    So, we are left with trust. My feelings for any particular leader aside, I have a natural distrust of power to curb itself.

  27. rafinlay

    1)Why are phone calls considered sacred? Why are conversations overheard in person okay, while conversations overheard by intercepting an electronic signal somehow evil? I have always thought if you want a communication to really be private, say it in person. The “privacy” of telephonic/radio communication is a nicety which isn’t worth preserving even in the face of domestic organized crime, much less terror attacks.
    2)No, but we need to come up with a better method than the standard of petty crime. Isn’t it obviously absurd to arrest a terror cell leader and spring him on bail immediately? If we hadn’t gone too far in the direction of criminals’ rights, this may not be as big an issue. Give them lawyers, but better define probale cause.
    3)Of course. Let’s not be wishy-washy: how about real torture? Then I have real qualms. How do we draw the line? Does a representative assembly have a use here?
    4)Journalists or their sources, if guilty of providing aid and comfort to the enemy in time of war, are guilty of treason. I can only wish someone would investigate them on those grounds. As someone else said, journalists do not have blanket immunity from law.
    5)Case by case determination.
    6)Why would anti-terrorism cops NOT be allowed at least the same tools available to other police? Is the crime/risk less serious?
    7)No. Nor in drug cases, or any other case. A clear violation of the Constitution.
    8)Not unless civil authority breaks down.
    9)I used to oppose this, then I didn’t care. Now my only concern is that a single ID makes faking documentation easier. So it might be counter-productive.
    10)Probably not — I suspect a real tendency for over-classification exists. This is not to say that therefore ANY information should be permitted to be made public.

    For perspective, try to imagine the consequences if the civil liberties uber alles crowd prevails, and they are mistaken? What kind of civil liberties would remain if the terror war were brought to this country like it has in Israel? We have a strong vigilante tradition in America.

    Is the WTC attack a statistical anomoly? That presumes there has been no interference with terror organizations since 9/11. We cannot know.

  28. Revenant

    You cannot be serious in suggesting that him signing it only because he doesn’t believe it applies to him is the same as the support of 90 senators and the majority of the American people.

    I suggested nothing of the kind, seriously or otherwise.

    Your reading is tendentious to the point of purposeful mendacity. Stop it.

    Ease off on the 25¢ ad-hominems and think for a minute, Pooh. Rainsborough’s claim was that Bush reserves the right to torture whenever he feels like it and that the Republican Congressional leadership backs him on this. The reality is that Bush has claimed the right only to use torture in cases where his Constitutional powers would allow it (i.e., in cases of national security) Furthermore, a supermajority of both houses specifically passed the McCain bill in order to limit Bush’s power, which means that Rainsborough’s claim about Republican leaders backing Bush’s position is also untrue.

    Now, it may be that you personally draw no distinction between “national security” and “when he feels like it”, but I don’t see why I’m obligated to share that belief. And given that nobody here has any evidence that Bush intends to pull such a stunt, it is certainly dishonest to go around saying that Bush claims a blanket ability to authorize torture.

  29. Revenant

    you are creating a condition that is not analogous to any other war, and one nearly impossible to discern.

    Pardon me, but it is analogous to just about every other war we’ve fought. World War II, for example, didn’t end when Hirohito said “I give”. It ended when all of the Japanese had been either killed, captured, or had consented to deal with us peacefully. Surely you’re not claiming that we’d still have considered WW2 over, even if the Japanese had kept up with shooting at us and crashing planes into our ships, so long as the Japanese government said “we surrender”? Of course not. What has always mattered has been that the actual violence stops.

    True, but the “Cold War” did not confer war powers, which is our specific point of debate here (right?).

    The point of debate was whether it is possible to recognize when a conflict ends, even if the conflict was against a vague and widely-dispersed foe. If we are able to say “the Cold War is over”, why is it so strange to think that we’ll be able to recognize when the war on terrorism has been fought to completion?

    In this case, how is it possible to know that “all” terrorists and sponsored have been capitulated or been killed, as you suggest?

    I’m afraid I don’t see the impossibility here. Terrorists are just people, and people can be counted and tracked. Obviously we can’t have perfect knowledge, just like we didn’t have perfect knowledge that Japan’s surrender was genuine. Ultimately all wars end either when (a) the people in charge figure the war’s over and convince the American people they’re right or (b) the American people get cranky about the war and demand that it end. The war on terrorism will end the same way.

    The key difference here is that we have no way to form our own judgement. All that we have is what our leaders tell us, which is naturally uncomfortable.

    If you said “there may come a day when all we have is what our leaders tell us” I would agree. But the idea that all we have *today* is their word is simply not true at all. There are plenty of terrorist threats to Americans that can easily be discerned without taking our government’s word for it (e.g., Iran).

    Should that hypothetical day come to pass when a private citizen is unable to detect any threat from terrorism it won’t matter if the government insists the threat is there. The pressure will come down on Congress to end the war regardless.

  30. Mark B.

    The problem with comparing the War on Terror to the Cold War or previous “hot” conflicts is that “terror” is not a government, political movement, or ideology – it is an operational tactic used by a wide array of extremist organizations of every poltical hue. Does the War on Terror end when Al Qaeda is smashed and Bin Laden captured or killed? Do we have to smash all of the right-wing movements that utilize terror as well? What about organizations that may split from the Al-Qaeda parent – do we have to crush all of them before we declare “victory?”

    If this was an explicitly defined War on Al-Qaeda, I’d be a lot less worried about Bush’s grandiose exercises in Presidential power – this war, however is so nebulously defined that President Putin can even try cramming his Chechnya mess under its aegis. I don’t see a neatly-defined resolution to this war – it may be years before we even recognize that we’ve “won.”

  31. Revenant

    The problem with comparing the War on Terror to the Cold War or previous “hot” conflicts is that “terror” is not a government, political movement, or ideology – it is an operational tactic used by a wide array of extremist organizations of every poltical hue.

    It is pretty universally understood that when we say “terrorism”, we mean “Islamic terrorism”. And while it is true that a wide variety of organizations use terrorism, virtually all international terrorism is carried out by Muslims. Domestic terrorism can be dealt with as a law enforcement matter within the various countries it afflicts.

    In short, we aren’t going to war to wipe out the IRA, nor does anybody think we are. We just say “War on Terrorism” instead of “War on Islamic Terrorism” because there’s already enough of a “the US has declared war on Islam” sentiment as it is.

  32. Pooh

    Revenant,

    I stand by my statement, though apologize if my wording was a little strong (listening to these gasbags in the Senate for 3 days will do that). Saying that ‘Bush supports the torture ban’ is just plain inaccurate. Now if you want to argue that he is not bound by that ban due to some Yooian machinations, that’s a differnt thing, and we can have that discussion (though I’d prefer not to, I think we can both link to about 50 blogs with the relevant arguments and agree to disagree.)

  33. Brad

    Surely you’re not claiming that we’d still have considered WW2 over, even if the Japanese had kept up with shooting at us and crashing planes into our ships, so long as the Japanese government said “we surrender”?

    I thought I was pretty clear on this point. Surrender is not a document, it is the acceptance of the terms of surrender of the victor. This typically includes some level of postwar occupation, and observable disarmament.

    This doesn’t change the stickiness of the situation: when a state surrenders, we accept the general (and observable) actions of the state to speak for the group. We don’t require a non-aggression oath from every enemy soldier; unless there is observable organized military action, the conflict ends. Put another way, if three Japanese people shot at us with guns (say, within 6 months following national surrender), we would make a determination as to whether this was a continued war effort or not. (In the case of “crashing planes into ships” this would be a very easy determination). We also assume (or enforce) cooperation from the surrendering state in curtailing the future aggressions of their soldiers.

    Without a state, the analogy falls apart. Here, there is no difference between organized action and rogue actors. The actions of one unaffiliated person may justify the continued “war” in a way that they cannot in international conflict. My problem here is that there will always be three people that hate us and can find a stick of dynamite. In this sense, the “war” is perpetual. If a Japanese person today (or in 1955) bombed a diner and left a note that says “remember Hiroshima,” we are unlikely to consider this a continuation of Japanese aggressions of WW2. The same cannot be said of a “war against terror.” Small acts become continued justification. (By small, I mean relative to the scale of war, not the personal tragedy of the victims.)

    The point of debate was whether it is possible to recognize when a conflict ends, even if the conflict was against a vague and widely-dispersed foe. If we are able to say “the Cold War is over”, why is it so strange to think that we’ll be able to recognize when the war on terrorism has been fought to completion?

    For my part, I am debating about recognizing the end of a conflict specifically for its application to war powers. I’m suggesting that granting war powers creates a condition that actually changes whether the government will, for their part, want to recognize the end of a conflict.

    Put bluntly, if we had given the executive additional power during the cold war (relinquished only at a time when we can reasonably agree the war has ended), I suspect we might very well have heard that China is the “new front” in the cold war, or that Cuba is still an irrational actor that requires the additional powers of war, lest they become a future threat.

    On top of that, the war on terrorism, by its nature, requires so much secrecy that there are many fewer signals for the public to look for. It is not possible for the public to independently verify the negative condition “there are no more terrorists” in the same way we can verify the surrender of a nation (for example, through the observations of independent international bodies). The government is our primary source of information in this regard.

    If you said “there may come a day when all we have is what our leaders tell us” I would agree. But the idea that all we have *today* is their word is simply not true at all. There are plenty of terrorist threats to Americans that can easily be discerned without taking our government’s word for it (e.g., Iran).

    Again, this is with regard to any taking of extra-constitutional power by the executive for the purpose (or duration) of a war. I’m arguing that, since we (the public) don’t know the enemy, the war can be made indefinite. Saying that some of the enemy is observable in the shape of Iran doesn’t change that.

    Saying that we know that there are (in the form of Iran) does not contradict the ambiguity at our endpoint. So yes, we can sometimes identify the positive case (“there are terrorists or terrorist sponsors”) without help, but I am not convinced we can identify the negative case without relying almost solely on our government.

    Finally, it is worth noting that the post-9/11 resolution of force was not aimed at “Islamic fundamentalist terrorism” (or any other version of a war on terror). It was, in fact:

    “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States by such nations, organizations or persons.”

    The prevailing assumption that these powers were granted for a general war on terror (like, for example, with Iran) is already an expansion of power, and it is this expansion that invites abuse. If the president wants additional powers for a war on terror, they should be sought and granted as in any other war.

  34. William R. Barker

    Revenant wrote…

    The clear intent was that Congress should decide when the USA goes to war. Congress did decide when we went to war — that was the authorization of force.

    ==================================

    Actually, no, Rev, they didn’t. What does the word “when” (as in “Congress did decide when we went to war”) mean to you? Obviously “when” in this case didn’t refer to a specific time… right??? It referred to a time of the President’s choosing… right?

    Or… am I right?

    For the last few years certain Democratic revisionists have actually been arguing the Congress never did specifically give President Bush the authority to go to war “at will,” but only “if necessary.” You know that, Rev!

    But anyway… that’s the point, now, isn’t it? The post-WW-2 practice of handing over war making power to the president allows members of Congress to later try to wiggle out of their initial support – thus creating confusion and division.

    =================================

    Revenant continued…

    The clear wording is “Congress shall have the power to declare war”. There’s no textual requirement for the form the declaration has to take or the wording it has to use.

    ================================

    You’re reaching, here, Rev. (*GRIN*) Following your logic why is the phrase even in the Constitution? The clear meaning and intent – not to mention common sense and simple organizational efficiency – was to differentiate the Congress’ power to decide when and where this nation goes to war from the president’s power as Commander-In-Chief.

    Beyond that… basically what Congress was doing was putting the ball in the President’s court – putting the onus on the President to take this country to war and for all intents and purposes relinquishing their own constitutional duties to the President. BUZZ!!! Sorry, Rev… they can’t do that.

    Following your logic any Congress could simple pass a resolution on the first day of its term authorizing the President to invade any nation of his (or one day her!) choosing at any time of his choosing within his term of his office. Do you think this is what the Founders had in mind, Rev?

    ==================================

    Reverant continued…

    Congress declared war when they authorized the President to attack another nation.

    =================================

    Hmm… so a state of war existed between Iraq and the U.S. from the moment Congress passed the resolution? Is that what you’re saying, Rev? I forget… how specific was the resolution? Did it specifically apply only to Iraq or was it open-ended? Did Congress actually declare war on the entire world that day and you’re the only one who realized it? (*GRIN*)

    =================================

    Revenant continued…

    The belief that it doesn’t count as a declaration because Congress didn’t say “Simon says” is silly and without legal or Constitutional basis.

    =================================

    Sorry, Rev… you’re just wrong. Listen… if the Founders had intended the President to have war MAKING (in terms of deciding when, where, and with what nations) power they would have made that clear in the Constitution. They would have written something along the lines of “The Chief Executive shall have the duty and power to take the nation into war whenever and wherever it is in his judgement necessary to do so.” Sorry, Rev… I missed that section. (*SMILE*)

    No, Rev, Congress doesn’t have to use the phrase “We Declare War Against…” They could use the phrase “A state of war now exists between the United States and…” There’s a whole bunch of ways a “declaration” can be written, but for God’s sake, let’s stop playing word games; the clear intent of the Founders and the clear logic of the Constitution was and is that Congress must specifically declare war against “someone” and inherent with logic the specific declaration should be effective from the date of the declaration.

    ================================

    Revenant

    So, no, there’s nothing contrary to either the spirit or the letter of the Constitution in the way Congress declares war these days.

    ================================

    With respect… we disagree.

    =================================

    Revenant finished with…

    The important thing was, and is, preventing the President from using the military as a private army free from Congressional control.

    ==================================

    But, Rev… that’s exactly where your logic leads!

    BILL

  35. mythago

    but I just don’t see the massive threat to liberty here

    I must have overlooked the Massive Threat to Liberty clause of the Fourth Amendment.

    In short, we aren’t going to war to wipe out the IRA, nor does anybody think we are

    Under this Administration, no.

  36. Revenant

    I must have overlooked the Massive Threat to Liberty clause of the Fourth Amendment.

    That’s surprising; your ability to detect the invisible “right to have private conversations” in the Fourth Amendment would suggest that you’re pretty good at spotting Constitutional rights whether they’re really there or not. :)

  37. Revenant

    Again, this is with regard to any taking of extra-constitutional power by the executive for the purpose (or duration) of a war. I’m arguing that, since we (the public) don’t know the enemy, the war can be made indefinite.

    No, it cannot. Suppose that Truman, in 1945, had said “even though Hirohito and the Japanese government have claimed that they surrendered, we have secret information that they’re continuing to plan attacks on America”. How would that have been any different than the scenario you paint with regard to the war on terrorism? And how long could Truman have kept it up before people caught on?

    You’ve been claiming that past Presidents couldn’t lie about when the war ended. Of COURSE they could have lied about when the war ended — they just didn’t, because (a) they had no reason to and (b) they knew they’d never get away with it for long. They could have played the “we have secret information that the war continues” card that you’re worried about future administrations playing in the current war. If we as private citizens look at the world around us and say “WHAT terrorists?”, how exactly is the government going to get away with saying “oh, trust us — they’re out there”?

    If the president wants additional powers for a war on terror, they should be sought and granted as in any other war.

    They have been. That’s why, for example, Bush got new authorization for the invasion of Iraq, even though that war was and is seen as part of the larger war on terrorism. If we need to go to war with Iran as well, separate authorization will be sought for that too. Thus far the original 9/11 authorization of force has, so far as we know, only been used against Al Qaeda and its support network.

  38. Rainsborough

    The decisive vote in the House on the torture issue occurred December 14 on a motion to instruct conferees to support the McCain amendment. One Democrat and 121 Republicans voted against the amendment. Of the House leaders listed at the House site as occupants of House leadership offices, one, Deborah Pryce, voted for the motion. Leaders voting against the motion were DeLay, Doolittle, Shadegg, Blunt, and Boehner–currently out of the leadership but contesting for reentry. The Speaker, of course, did not vote.
    Majority Leader Frist was not among the nine Senators who opposed the McCain amendment in the Senate. Nor did any other member of the Senate leadership, unless one counts the President pro tem or the chair of the Intelligence Committtee.

  39. Rainsborough

    Oops. In the second sentence of the foregoing, strike “amendment,” insert “motion.”

  40. Y

    That’s surprising; your ability to detect the invisible “right to have private conversations” in the Fourth Amendment would suggest that you’re pretty good at spotting Constitutional rights whether they’re really there or not. :)

    Just so I’m clear on this Revenant. Is your belief rights are granted the Constitution? And if that right is not spelled out than I don’t have it? Because it seems if I take your statement to the logical foundation, than any citizen only has what rights are granted by the Government (in your point of view).

  41. Revenant

    Is your belief rights are granted the Constitution?

    Generally speaking, no, although there are places where it does grant rights. Examples include the grand jury requirement for prosecution, the 26th amendment’s guarantee of 18 year olds’ right to vote, and the 14th amendment grant of citizenship to everyone born in America.

    And if that right is not spelled out than I don’t have it?

    What matters isn’t whether a person has a right, but whether the Constitution protects it from infringement. For example, many believe that we have the right to do as we wish with our own bodies so long as we do not harm others by our action. We may indeed have that right, but the Constitution doesn’t protect it — which is why laws against drugs and prostitution hold up in court.

    You may have a natural right to not be eavesdropped on. But it isn’t a right the federal government is forbidden from infringing upon.

  42. Y

    What matters isn’t whether a person has a right, but whether the Constitution protects it from infringement. For example, many believe that we have the right to do as we wish with our own bodies so long as we do not harm others by our action. We may indeed have that right, but the Constitution doesn’t protect it — which is why laws against drugs and prostitution hold up in court.

    Thank you for clarifying your position Revenant.

    From my perspective, your point of view leads to a king/subject relationship, where the government can basically do what ever it choses unless there is a specific statement banning such activity, rather than a Constitutional government of limited and enumerated powers. While your point of view is very pragmatic, considering Kelo vs. New London and the NSA domestic spying, it is not one I agree with.

  43. Brad

    Of COURSE they could have lied about when the war ended — they just didn’t, because (a) they had no reason to and (b) they knew they’d never get away with it for long. They could have played the “we have secret information that the war continues” card that you’re worried about future administrations playing in the current war.

    We seem to be at the crux of our disagreement here (which is a good thing).

    To point a – confering extra power is, in its nature, an incentive to continuing war. It is not a strong incentive relative to the political costs of a standard war. However, in this case, I think the incentive becomes much stronger.

    To point b, and the Truman example: while the executive could have played the secret information card in previous wars, it would have been difficult to do. There are public signals that we can all see.

    How would that have been any different than the scenario you paint with regard to the war on terrorism?

    The fact that we were occupying Japan, as well as (today) the fact that there are international bodies that can verify things such as disarmament, are the difference. In the war on terror, we cannot “occupy” terror.

    You may believe it is ridiculous that a president could simply say “trust me, we know of other terrorists, and we are searching them out,” but I don’t. Especially since part of the rationale can be that it is only quiet because we continue to foil would-be plots.

    If we as private citizens look at the world around us and say “WHAT terrorists?”, how exactly is the government going to get away with saying “oh, trust us — they’re out there”

    My point here is… what, exactly, would we be going on as we “look around”? Our instincts? A period of quiet that could be attributed to our anti-terror efforts? In the absence of other information, it is natural for the public to trust what the government tells them. This is the sort of situation that invites abuse.

  44. Revenant

    From my perspective, your point of view leads to a king/subject relationship, where the government can basically do what ever it choses unless there is a specific statement banning such activity, rather than a Constitutional government of limited and enumerated powers

    The enumerated powers of government are an entirely separate issue from the rights of American citizens. For example, even if US citizens’ right to privacy isn’t protected by the Constitution, it would still be unconstitutional for the government to violate that privacy — or do anything else — unless it did so in the exercise of one of its allowed powers. But espionage has always been a part of warfare, and warfare is definitely among the enumerated powers of the legislative and executive branches.

    In any case, a democratic government with no checks on its power at all still isn’t equivalent to a king. Kings aren’t elected; their subjects can’t fire them and replace them with somebody else.

  45. Revenant

    To point b, and the Truman example: while the executive could have played the secret information card in previous wars, it would have been difficult to do. There are public signals that we can all see.

    There are public signals in the war on terrorism that we all can see, too. Not a month goes by without people being blown to bits by Islamic crazies. It isn’t like terrorist attacks happen in secret — indeed, the whole point of them is for people to find out about them.

    You may believe it is ridiculous that a president could simply say “trust me, we know of other terrorists, and we are searching them out,” but I don’t. Especially since part of the rationale can be that it is only quiet because we continue to foil would-be plots.

    Again, Presidents could pull the exact same stunt in a traditional war — saying that the enemy was continuing to plot in secret, and that even though there were no visible signs of conflict, trust us, the attacks are on the way. Your concern is not unique to the war on terrorism.

    And you’re also forgetting that it isn’t up to the President to decide whether or not a war is over. That is Congress’ job.

    In the absence of other information, it is natural for the public to trust what the government tells them.

    No, it isn’t. Take a look at the lead-up to the American entry into WW2, for example, when Roosevelt was trying the hard sell on the importance of opposing the Nazis and the overwhelming response of the American people was we shouldn’t go to war. People’s natural inclination is to believe that the problems they see are real problems and the problems they don’t see aren’t. “We swear there’s a problem, we just can’t tell you what or why we know” is not a line people buy from politicians.

  46. William R. Barker

    ***RECKLESS PARTISANSHIP ALERT***

    No…! Not *me*!!! I’m talking about Rainsborough! (*GRIN*)

    Example:

    Rainsborough writes…

    “…this president believes that the president alone may at his discretion take the country into war.”

    Buzz! “This” president, Rainsborough? You are kidding… right? Perhaps you just “misspoke.” (*GRIN*)

    The problem… as I’ve been arguing ad nauseum with Revenant… is that ALL presidents apparently believe that they have this innate authority.

    FURTHERMORE… most Americans… apparently including many, I fear most, judges and legislators are under the same misconception – at least as long as a president isn’t invading Canada or bombing Paris.

    (And with the Paris example… I’m not so sure…) (*SMILE*)

    Seriously, Rainsborough… perhaps it was just a slip on your part, but you hurt “our” case when you politicalize constitutional doctrine along partisan lines.

    BILL

  47. William R. Barker

    Someone (Rev?) brought up “the 14th Amendment’s grant of citizenship to everyone born in America.”

    There was a VERY interesting letter to the editor of the Wall Street Journal published on (I believe) December 7, 2005. The author was Dr. John C. Eastman, Professor of Law, Chapman University School of Law, Director, The Claremont Institute Center for Constitutional Jurisprudence. (Wow…! That’s a mouthful!)

    Excerpts:

    (Note… when all caps are used they’re mine so as to emphasize key points.)

    The 14th Amendment provides that “All persons born or naturalized in the United States, AND SUBJECT TO THE JURISDICTION THEREOF, are citizens…”

    Professor Eastman comments that to treat the last clause as describing merely territorial jurisdiction is to render the clause superfluous. Even temporary visitors (TOURISTS) are subject to U.S. jurisdiction in that sense. The clause must therefore mean something more – AN ALLEGIANCE-OWING JURISDICTION.

    Eastman continued…

    The debates in THE CONGRESS THAT APPROVED THE CLAUSE, and the UNANIMOUS OPINION OF THE SUPREME COURT THAT FIRST INTERPRETED IT, confirm this understanding. Sen. Reverdy Johnson of Maryland explained during floor debate, for example, that “all this amendment provides is, that all persons born in the United States AND NOT SUBJECT TO SOME FOREIGN POWER – for that no doubt is the meaning of the committee who have brought the matter before us – shall be considered as citizens of the United States.” The AUTHOR of the provision, Sen. Jacob Howard, ANNOUNCED that the clause “WILL NOT, OF COURSE, INCLUDE FOREIGNERS.”

    (Pretty interesting stuff, huh? I’m 43 years old, a well-read layman with regard to constitutional interpretation, and I’d never been exposed to these facts.)

    Eastman continued…

    The Supreme Court first considered the clause in the Slaughter-House Cases of 1872, UNANIMOUSLY recognizing that the phrase “WAS INTENDED to EXCLUDE from its operation children of…citizens or subjects of foreign States BORN WITHIN THE UNITED STATES.” This view was CONFIRMED in the 1883 case of Elk v. Wilkens. The phrase, according to the Court, meant “not MERELY subject in SOME respect or degree to the jurisdiction of the United States, but COMPLETELY subject to their political jurisdiction, AND OWING THEM DIRECT AND IMMEDIATE ALLEGIANCE.” Children of temporary visitors to the United States, particularly those who are here illegally, own primary allegiance to their parent’s country, not to the U.S., and are therefore NOT guaranteed citizenship by the terms of the 14th Amendment.

    (Wouldn’t this have been a great topic of discussion between current Senators and Judge Alito during the hearings?!?!)

    Eastman then points out…

    CONGRESS retains the power to offer citizenship MORE BROADLY than the Constitution REQUIRES, of course, pursuant to its plenary authority over naturalization. To date, IT HAS NOT DONE SO.

    In 1898, the SUPREME COURT (under its own self-defined “authority” – Bill) raised the citizenship floor mandated by the Constitution slightly, to include children of LEGAL, permanent residents who, by virtue of a treaty with the Chinese emperor, were never eligible for citizenship themselves. But to read the holding in Wong Kin Ark as determining that the Constitution also mandates AUTOMATIC CITIZENSHIP to children of temporary, ILLEGAL immigrants not only presses the Constitution’s text beyond the breaking point, but significantly intrudes on Congress’ plenary power over naturalization.

    Eastman concludes…

    More fundamentally, such a view permits illegal immigrants, by THEIR unilateral and ILLEGAL action, to demand membership in a political community supposedly grounded on mutual consent. It permits people such as Yaser Esam Hamdi, who clearly owned his PRIMARY allegiance to a foreign power and who was captured in Afghanistan in armed conflict against the U.S., to lay claim to the protections of citizenship merely because he was born in Louisiana while his father was on a temporary work visa. And it PREVENTS CONGRESS from making the critical policy judgments about the level of sustainable immigration that the CONSTITUTION DELIBERATELY ASSIGNS TO IT, providing instead a strong incentive for illegal immigration that fosters the kind of separatist communities within our midst that have produced mass riots in France (and Australia – Bill).

    * Well…??? Interesting, huh? This this thread is about to be consigned to the archives I’m going to email a copy of this post to Cathy with a request that she post it as a new thread.

    BILL

  48. BERNIE

    T J RODGERS IS AN IDIOT. WE ARE GOING TO BE HIT AGAIN HARD. IF ANYONE OF YOU LIBERALS HAVE READ ANYTHING ABOUT BIN LADEN OR OTHER TERRORISTS, YOU’D KNOW THAT THEY ARE PATIENT, THEY WAIT , THEY PLAN, FOR YEARS. BIN LADEN HAS SAID PUBLICLYTHAT HE WISHES TO USE SEVERAL NUCLEAR DEVICES IN (ACTUALLY HE SAYS SEVEN NUKES IN SEVEN CITIES) THE US SIMULTANEOUSLY
    SO BACK TO THE IDIOTS QUESTION. NO WE HAVE NOT SEEN THE WORST ATTACK THAT THE TERRORISTS CAN HIT US WITH. I ONLY HOPE THAT THE AUTHORITIES ARE ABLE TO STOP IT BEFORE IT COMES. WITH WHATEVER MEANS NECESSARY. “ANONYMOUS” AND ALL YOU OTHER CRYBABIES BEST WAKE UP AND SMELL THE COFFEE. OR YOU JUST MAY BE WAKING UP TO AN EVENT
    THAT YOU CANT EVEN FATHOM, UNLESS YOURE LUCKY ENOUGH TO BE IN ONE OF THE TARGETED CITIES. THE FOUNDING FATHERS WERE NOT COWARDS, THEY JUST COULD NOT POSSIBLY IMAGINE THE WORLD OF TODAY, OR THAT THERE WOULD BE SUCH A COWARDLY, LIE-BERAL LEFT IN THIS COUNTRY. “GOD”
    HELP US IF THE LIBS GET ANY PART OF THE GOV’T BACK. YOU LIBS SHOULD BE THANKING “GOD” THAT YOU LIVE IN THIS COUNTRY, AND HOPE THAT IT REMAINS AS IT IS, WHERE YOUR WOMEN ARE’NT REQUIRED TO WEAR BIRKAAS, AND YOU DON’T HAVE TO KNEEL AND FACE MECCA 5 TIMES A DAY. YOU LIBS HAVE NO CLUE.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s